Considered
and decided by Schumacher, Presiding Judge, Halbrooks, Judge, and Hudson,
Judge.

U N P U B L I S H E D O P I N I O N

HUDSON, Judge

Appellant
challenges his indeterminate commitment as a sexually dangerous person pursuant
to Minn. Stat. § 253B.02, subd. 18c(a). Specifically, appellant challenges the
constitutionality of the statute on the grounds that (1) the “lack of
adequate control” commitment standard violates substantive due process because
it is overly broad, (2) the “course of harmful sexual conduct” requirement
is unconstitutionally vague and inapplicable to him because two convictions are
insufficient to establish a course of conduct, and (3) the statute
improperly shifts the burden of demonstrating a less-restrictive alternative
than commitment from the state to the committee. Because we conclude the statute as applied to this appellant is
constitutional, we affirm.

In October 1982, Taylor kidnapped 18-year-old C.F., forced her
into his car and drove her to an apartment where he raped, punched, kicked,
choked, and threatened to kill her.
Taylor pleaded guilty to one count of first-degree criminal sexual
conduct and one count of kidnapping, and served a 76-month sentence. While he was in prison from 1983 through
1987 for raping C.F., Taylor briefly participated in a sex offender treatment
program. Prison records indicate that
he was a negative influence on other participants and his treatment team
eventually recommended that he be dropped from treatment as a “program
failure.”

Fourteen months later, while on supervised release, Taylor
raped 17-year-old M.S. Taylor gained
entry to her apartment by asking to use the phone. Taylor left, but returned a short time later asking to use her
phone again. Once inside, Taylor
handcuffed M.S., led her into the bedroom and made her lay facedown while he
undressed her. When M.S. screamed,
Taylor grabbed her by the hair, yanked her head back, and put a knife in her
face. Taylor brought M.S.’s crying
infant in from another room, put him on the bed next to her and ordered her to
make the baby stop crying. Taylor raped
M.S. while she was trying to calm the child.
He then forced her to perform fellatio.
A jury found Taylor guilty of two counts of first-degree criminal sexual
conduct. Taylor served an executed 240
months—two and one-half times the presumptive guidelines sentence. Taylor refused chemical dependency and sex
offender treatment numerous times during this term of incarceration.

Prior to Taylor’s release, Minnesota Department of Corrections
psychologist Scott Johnson (Johnson) conducted a forensic evaluation to
determine whether commitment proceedings should be initiated. During this interview, Taylor denied raping
either of the women, but smiled when Johnson brought up details of the two
crimes. Taylor said he did not need
treatment because he did not consider his sexual behaviors problematic. Johnson concluded that Taylor met the sexual
psychopathic personality (SPP) and SDP statutory specifications, basing his
conclusion on several factors.

First, Taylor showed a progressive decline in cognitive and
social functioning as indicated by numerous prison discipline reports, refusal
to comply with treatment programs, and the “lack of any meaningful therapeutic
intervention.” Next, Taylor’s second
offense demonstrated increased forethought and an escalating pattern of
violence. Johnson diagnosed Taylor with
antisocial personality disorder and paraphilia with features of force,
nonconsent, and sadism. Further,
Johnson opined that Taylor’s behavioral disturbances and disorders prevented
him from adequately controlling his sexual impulses and that Taylor was very
likely to engage in future acts of harmful sexual conduct. Finally, Johnson found that Taylor lacked
customary standards of good judgment in sexual matters and altogether failed to
appreciate the consequences of his actions.
Based on Johnson’s review of Taylor’s history, as well as his forensic
interview, Johnson concluded that involuntary commitment to a secure treatment
facility was the only viable option for meeting Taylor’s treatment needs while
preserving public safety.

Two other experts also interviewed Taylor. Both concluded that Taylor satisfied the
statutory requirements of an SDP, but not an SPP. Court-appointed examiner Dr. James Alsdurf (Alsdurf) stated
that Taylor had engaged in serious sexual misconduct, more than just the fact
of two first-degree criminal-sexual-conduct convictions. Alsdurf considered the relation in time
important—Taylor committed his second, more serious offense, just 14 months
after his release from prison for the same substantive offense. Alsdurf testified that the offenses were
quite similar and that “these were not just two anomalous events but in fact
related more to what had emerged by the second time into a “course of sexual
conduct.”

Alsdurf diagnosed Taylor as suffering from antisocial
personality disorder as well as paraphilia.
The diagnostic criteria for antisocial personality disorder requires
that the person exhibit three of seven features listed in the DSM-IV. Both examiners testified that Taylor
satisfied all seven of the diagnostic features. In Alsdurf’s opinion, Taylor was very likely to reoffend as he
consistently refused to take responsibility for either of his rapes and
exhibited no empathy for his victims or remorse for his actions. Alsdurf further opined that Taylor’s mental
disorders rendered him unable to adequately control his sexual impulses and
urges, and recommended commitment in a secure facility as the only appropriate
treatment option.

Taylor’s expert, Dr. Roger Sweet
(Sweet), concurred that Taylor met the statutory requirements of an SDP. Sweet opined that commitment in a secure
facility was the only appropriate course of treatment for Taylor that still
preserved public safety. Like Alsdurf,
Sweet testified that Taylor has shown no remorse for his offenses and actually
vacillates between admitting and denying that he did anything wrong. Both Sweet and Alsdurf testified that
releasing Taylor from prison on intensive supervised release, as Taylor
suggested, would not sufficiently protect the community. Similarly, Taylor’s parole officer testified
intensive supervised release would be inappropriate because Taylor had not
completed sex offender or chemical dependency treatment.

At the commitment hearing, Taylor
argued that the SDP “lack of adequate control” commitment standard violates
substantive due process because it is overly broad and does not comport with
the dictates of the United States Supreme Court’s decisions in Kansas v.
Crane, 534 U.S. 407, 122 S. Ct. 867 (2002), and Kansas v.
Hendricks, 521 U.S. 346, 117 S. Ct. 2072 (1997). Taylor also argued that the “course of
harmful sexual conduct” requirement was unconstitutionally vague and
inapplicable to him because two convictions are insufficient to establish a
“course of conduct.”

In its initial commitment order, the
trial court concluded there was sufficient evidence to support commitment of
Taylor as an SDP, but not an SPP. The
trial court rejected Taylor’s contention that two offenses were insufficient as
a matter of law to constitute a “harmful course of sexual conduct.” The trial court also rejected Taylor’s
constitutional vagueness claim, instead treating the issue as fact-specific,
and concluded that Taylor’s two convictions were sufficient to form a “course
of harmful sexual conduct.” The court
also found that Taylor “lacks the insight, remorse and empathic abilities to
adequately control his sexual impulses.”

Following
the 60-day report and subsequent hearing, the trial court affirmed its original
order and committed Taylor as an SDP for an indeterminate period.

This appeal of both commitment
orders followed.

DECISION

I

Taylor challenges the
constitutionality of Minn. Stat. § 253B.02, subd. 18c(a) (2002) “lack of
adequate control” standard, claiming this standard violates due process because
it is overly broad and does not comport with the United States Supreme Court’s
decisions in Kansas v. Crane, 534 U.S. 407, 122 S. Ct. 867 (2002),
and Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072 (1997). We disagree.

To commit an individual as an SDP,
the state must show by clear and convincing evidence that the person:
(1) has engaged in a course of harmful conduct; (2) has manifested a
sexual, personality, or other mental disorder or dysfunction; and (3) as a
result, is likely to engage in acts of harmful sexual conduct.
Minn. Stat. § 253B.02, subd. 18c(a) (2002) (SDP
Act). The Minnesota Supreme Court has
clarified that commitment as an SDP requires that the person’s present disorder
“does not allow [offenders] to adequately control their sexual impulses, making
it highly likely that they will engage in harmful sexual acts in the
future.” In re Linehan, 594 N.W.2d 867, 876 (Minn. 1999) (Linehan IV).

This
court recently analyzed the phrase “lack of adequate control” in terms of both
substantive due process and vagueness. In re Ramey, 648 N.W.2d 260 (Minn. App.
2002), review denied (Minn. Sept. 17,
2002). We concluded that the SDP Act
comports with the United States Supreme Court’s mandates in both Hendricks and Crane.

Under Hendricks, civil
commitment of dangerous sex offenders requires a showing that the offender
cannot control his dangerousness because of a volitional impairment. Hendricks,
521 U.S. at 358, 117 S. Ct. at 2080. Crane refined Hendricks by setting the peripheral constitutional boundaries—that
is, the state must make some showing of inability to control, but this need not
be an absolute lack of control. Crane, 534 U.S. at 411-12, 122 S. Ct. at
870-71. Although Crane made it
clear that the Constitution contains no requirement of total or complete lack
of control, the Court rejected the state’s argument that no showing of
inability to control is required. Id.
at 413, 122 S. Ct. at 870. Instead, the
Court held:

[W]e recognize that
in cases where lack of control is at issue, “inability to control behavior”
will not be demonstrable with mathematical precision. It is enough to say that there must be proof of serious
difficulty in controlling behavior.
And this, when viewed in light of such features of the case as the
nature of the psychiatric diagnosis, and the severity of the mental abnormality
itself, must be sufficient to distinguish the dangerous sexual offender whose
serious mental illness, abnormality, or disorder subjects him to civil
commitment from the dangerous but typical recidivist convicted in an ordinary
criminal case.

Id. (emphasis
added).

As a result, in Ramey, we observed
that Crane added to the requirement
for civil commitment as an SDP “the affirmative duty to make a lack of control
determination, which is already a requirement of the Minnesota standard under Linehan IV.” Ramey, 648 N.W.2d at
266-67. We thus concluded in Ramey
that “the requirement of an inability to control behavior to some degree, as
required by Crane, is satisfied by
the interpretation of the SDP Act as set forth in Linehan IV.” Id. at 267. See also In re Martinelli, 649 N.W.2d 886, 890 (Minn. App.
2002) (holding that the “lack of adequate control” standard applied by the
district court, when read along with the language in Linehan IV
requiring a “mental abnormality” or “personality disorder” making it
“difficult, if not impossible” for that person to control his sexual conduct,
satisfies the constitutional standard set by Crane).

Nevertheless,
Taylor argues that Crane established a “special-and-serious”
lack-of-control standard and that Ramey’s holding does not satisfy the
constitutional mandates prescribed in Crane. Taylor’s reliance on this purported “special-and-serious”
standard in Crane is misplaced.
Contrary to Taylor’s assertion, Crane
did not set forth a new “special-and-serious” standard. Rather, Crane
refused to set the constitutional threshold, articulating only the outer
limits. Furthermore, as respondent
correctly states, while the phrase “special and serious” does appear once in
the Crane opinion, it is used only to describe the subject of the
previous case, Hendricks.See
Crane, 534 U.S. at 413, 122 S. Ct. at 870. The actual holding in Crane states that “[i]t is enough to
say that there must be proof of serious difficulty in controlling behavior.” Id. (emphasis added). The Linehan IV standard under which
Taylor was committed complies fully with the requirements of Crane.

Taylor
further argues that the “lack of adequate control” standard is
unconstitutionally vague and insufficient to distinguish sex offenders who may
constitutionally be committed from ordinary recidivist offenders. It is essential, under Crane, that
there be a judicial finding of “lack of control” based on expert testimony
tying that “lack of control” to a properly diagnosed mental abnormality or
personality disorder before civil commitment may occur. Such a finding, if it establishes a “serious
difficulty” in controlling behavior, adequately distinguishes the offender
subject to commitment from the “typical recidivist” offender.

The
constitutionally required finding has been made in this case. The trial court specifically concluded that
Taylor has an antisocial personality disorder, and that this mental impairment
does not allow him to control his sexual impulses adequately. In addition, the expert opinions from
Alsdurf and Sweet on Taylor’s lack of ability to control his behavior,
sufficiently distinguish Taylor from the “typical recidivist” offender, as
required by Crane.

With
respect to Taylor’s antisocial personality disorder diagnosis, the experts
found that Taylor met all seven of the criteria for the diagnosis, rather than
just three out of the seven required by the diagnostic manual. In addition, Sweet designated Taylor a
“clinical psychopath” and placed him in the top 18 percent of prisoners in
terms of severity of psychopathy.
Further, Alsdurf, Sweet, and Johnson all diagnosed Taylor with
paraphilia, and the trial court found Taylor had this disorder. Alsdurf and Johnson noted that the disorder
included “sexual sadism.” In addition,
Sweet and Johnson diagnosed Taylor with a disorder related to his chemical
abuse. Both rapes were committed when
Taylor was intoxicated; yet he did not participate in chemical dependency
treatment during his incarceration.

Based
on these mental disorders, all of the experts testified that Taylor had a
significant impairment in his ability to control his sexual behavior. This evidence, taken as a whole, adequately
distinguishes Taylor from the “typical recidivist” sex offender who is properly
dealt with through the criminal law. See
Crane, 534 U.S. at 412, 122 S. Ct. at 870.

The
trial court made the “lack of adequate control” finding that is
constitutionally required under Crane, Ramey,and Linehan IV. This finding, supported by an expert
diagnosis of mental abnormality or personality disorder tied to Taylor’s “lack
of control,” establishes a “serious difficulty” in controlling behavior, as
required by Crane.

II

Taylor
next asserts that the SDP Act is unconstitutionally vague as applied to him
because no Minnesota case has held that two convictions are sufficient to prove
a “course of harmful sexual conduct.” A
party raising a constitutional challenge to a statute “must overcome every
presumption in favor of its constitutionality.” Humenansky v. Minn. Bd. of
Med. Exam’rs, 525 N.W.2d 559, 564 (Minn. App. 1994) (citation omitted), review denied (Minn. Feb. 14,
1995). We exercise “extreme caution”
before declaring a statute unconstitutionally vague. Hard Times Cafe, Inc. v.
City of Minneapolis, 625 N.W.2d 165, 171 (Minn. App. 2001). Just because application of a law to
marginal facts appears uncertain, that law is not void for vagueness. Humenansky,
525 N.W.2d at 564. Rather, we
declare a statute void only where the law is “impermissibly vague in all of its applications.” Ramey,
648 N.W.2d at 267 (citation omitted).

Taylor
contends that at least several charged and/or uncharged incidents are required
to meet the clear and convincing evidentiary standard of proof. We disagree. Similarity between, as well as the number of, incidents are two
factors courts consider when determining whether a defendant’s behaviors
demonstrate a “course of harmful sexual conduct.” In re Bieganowski, 520 N.W.2d 525, 529-30 (Minn. App.
1994), review denied (Minn. Oct. 27, 1994); In re Monson, 478
N.W.2d 785, 789 (Minn. App. 1991). But
we need not set a numeric value to adequately define a “course of harmful
sexual conduct.” See Ramey, 648
N.W.2d at 267.

A
“course of harmful sexual conduct” is a fact-driven determination, and like the
Ramey court, we decline to set a numerical limit on what constitutes a
“course.” Here, the experts testified
that the frequency and similarity in Taylor’s two rapes formed a “course of
harmful sexual conduct.” Several
factors support the trial court’s conclusion that the two criminal sexual
conduct convictions here constituted a “course of harmful sexual conduct”: (1)
the reckless, violent nature of Taylor’s acts; (2) the relatively short time
span between Taylor’s supervised released and his second offense and the fact
that the second offense was committed while Taylor was still on supervised
release; (3) the similar methods in that each victim was a young, vulnerable
female unknown to Taylor; and (4) the increase in sophistication, planning, and
level of violence used.

We conclude that these convictions
sufficiently demonstrate a “course of harmful sexual conduct,” and that Taylor
has not met his burden of showing that the phrase “course of harmful sexual
conduct” is unconstitutionally vague as applied to him.

III

Finally, Taylor contends that it is
the state’s burden to prove the propriety of commitment, rather than his burden
to prove the impropriety of a commitment.
Taylor did not raise this claim in the trial court and he has therefore
waived his right to raise it here on appeal.
Thiele v. Stich, 425 N.W.2d 580, 592 (Minn. 1988). But even if we were to consider the merits,
Taylor’s claim fails.

Minn.
Stat. § 253B.185, subd. 1 (2002) provides that “the court shall commit the
patient to a secure treatment facility unless the patient establishes by clear
and convincing evidence that a less restrictive treatment program is
available.” At this stage in the
proceedings, the state has demonstrated each of the statutory elements of SPP
or SDP civil commitment. Contrary to
Taylor’s claim, Minn. Stat. § 253B.185, subd. 1 does not
improperly shift the burden of proof from the state to the committed person
because a committee does not enjoy a statutory right to a less restrictive form
of treatment. In re Senty-Haugen, 583 N.W.2d 266, 269 (Minn. 1998); In re Kindschy, 634 N.W.2d 723, 731
(Minn. App. 2001), review denied (Minn. Dec. 19, 2001). A person cannot avoid an SDP commitment just
because an alternative-treatment option exists. Rather, the person must show by clear and convincing evidence
that the alternative treatment meets the committed person’s needs while
preserving public safety. Unlike
commitment statutes for mentally ill, chemically dependent, or mentally-challenged
persons, Minn. Stat. § 253B.185, subd. 1 does not mandate that the
least-restrictive treatment be utilized; rather, it allows the committed party
the opportunity to present evidence of an appropriate alternative form
of treatment. The district court then
decides whether the proposed treatment is appropriate. Kindschy,
634 N.W.2d at 731; Senty-Haugen, 583
N.W.2d at 269.

The
fact that the trial court rejected Taylor’s proposed treatment alternative does
not mean Taylor was improperly saddled with the evidentiary burden of
“prov[ing] a negative.” The trial court
concluded that Taylor did not establish by clear and convincing evidence the
propriety and availability of a less-restrictive treatment option. “‘Clear and convincing’ requires more than a
preponderance of the evidence, but less than proof beyond a reasonable
doubt.” State v. Johnson, 568
N.W.2d 426, 433 (Minn. 1997) (citation omitted). This court will not reverse a trial court’s findings of fact
unless they are clearly erroneous. In
re Joelson, 385 N.W.2d 810, 811 (Minn. 1986). Here, the trial court’s determination is amply supported by the
record. All witnesses, including
Taylor’s parole officer, testified that Taylor’s proffered treatment alternative,
intensive supervised release, was wholly inappropriate because during his
entire incarceration, Taylor repeatedly refused chemical dependency and sex
offender treatment and therefore was a danger to the public.

We
conclude that the SDP Act is not overly broad or vague as applied to Taylor,
and that the trial court properly committed Taylor as a sexually dangerous
person.